S & Ors, R (on the application of) v Secretary of State for the Home Department

A withdrawn immigration policy will ordinarily have no application to a later decision. A court may intervene only exceptionally where the benefit of the policy was unlawfully withheld while it remained in force and the resulting injustice is so conspicuous that no reasonable decision-maker could refuse the corrective grant of leave.

Lawful delay or administrative inefficiency cannot, without more, require application of a former policy. Generalised claims of prejudice, anxiety or detriment do not suffice. A claimant must act promptly after the relevant asylum decision; substantial delay will normally be fatal.

The three appellants had claimed asylum while policies ordinarily granted four years’ exceptional leave to remain to unsuccessful applicants from Sierra Leone or Afghanistan. Such leave would normally have led to indefinite leave to remain.

Each claimed that administrative errors or an erroneous assessment of nationality deprived him of the former policy’s benefit. The policies had been withdrawn by the time the Secretary of State refused their later applications for indefinite leave to remain.

HH Judge Michael Supperstone QC, sitting as a Deputy High Court Judge in the Administrative Court, rejected their judicial-review claims. The appeals raised whether past administrative failings required the Secretary of State to grant indefinite leave notwithstanding the policies’ withdrawal.

1. All three appeals were dismissed. Lord Justice Goldring gave the judgment, with which Lady Justice Arden and Lord Justice Laws agreed.

2. The ordinary rule was that the legality of a refusal of indefinite leave was assessed by the facts and law when it was made. A former policy therefore did not ordinarily govern a decision made after its withdrawal: [1996] Imm AR 97.

3. The exceptional intervention in Rashid was properly understood in two stages. First, the Secretary of State must previously have unlawfully failed to apply the policy, thereby creating an injustice which was legally relevant to the later discretionary decision. Secondly, the injustice must be so extreme that fairness makes a grant of indefinite leave the only reasonable exercise of that discretion. The court should not direct the administration of the immigration system or award relief on a generalised conception of fairness: [2005] EWCA 744; [2007] EWCA 546.

4. A lawful failure to apply the former policy, including lawful administrative delay or inefficiency, could not found that exceptional remedy. Proceedings also had to be brought promptly after the asylum decision. Delay made it very difficult to establish the required conspicuous unfairness and was fatal in these appeals.

5. In S’s case, the non-compliance refusal rested on an error of fact and was legally unsustainable. It was therefore capable of amounting to no decision, and he lost an opportunity to seek exceptional leave while the policy existed. However, his later claim was very considerably out of time and the unfairness was not effectively determinative of his later application.

6. In H’s case, the initial non-compliance error had been short-lived. The Secretary of State was entitled to investigate substantial doubts about nationality, and it was almost inconceivable that H would otherwise have been recognised as Afghan and granted leave before the policy changed. There was no material inconsistency or conspicuous unfairness.

7. In Q’s case, defects in the nationality assessment did not make it unlawful. The caseworker had to reach a fair-minded and reasonable conclusion on the evidence available, not the standard of a specialist social anthropologist. Q accepted one year’s leave after the policy changed and waited until immediately before removal, four years later, to advance the present claim.

• Court of Appeal (Civil Division): dismissed the appellants’ appeals in [2009] EWCA Civ 334.
• Administrative Court: HH Judge Michael Supperstone QC, sitting as a Deputy High Court Judge, dismissed the judicial-review claims challenging refusals of indefinite leave to remain.